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Judicial review and the family lawyer

David Burrows, solicitor advocate with David Burrows & Co, provides an introduction to judicial review procedure for family lawyers

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David Burrows, Solicitor Advocate

A concern for rights
Any lawyer who is concerned with human rights must have an understanding of judicial review; and, even in the most general sense of ‘human rights’ this must involve most family lawyers. What follows can only be an introduction.

Judicial review procedure is dealt with in Civil Procedure Rules 1998 (‘CPR 1998’) Part 54; and Part 54 is itself a variant of the CPR 1998 Part 8 procedure (r 54.1(2)(e)). A claim in judicial review is based upon a decision – or, occasionally a failure to make a decision - of a public body; and the claim must normally be issued within three months of that decision (r 54.5(1)).

CPR 1998 r 54.1(2) defines a ‘claim for judicial review’ as the means whereby the High Court reviews ‘the lawfulness (i) of an enactment; or (ii) a decision, action or failure to act in relation to the exercise of a public function’ - eg a local authority as to a child under Children Act 1989 Part III; a discretionary decision of the Secretary of State for Work and Pensions (CSA)). A public body includes ‘inferior courts and tribunals’ (eg county and magistrates’ courts and Commissioners and tribunals). Judicial review is not available, save in exceptional circumstances, where alternative remedies – mostly appeals - are available to a claimant.

The claim is made by a person with ‘a sufficient interest’ in the issue s/he seeks to bring before the court (Supreme Court Act 1998 s 31(3)); and a person will be treated as having ‘a sufficient interest’ if s/he is a ‘victim’ of the unlawful act of a public authority (Human Rights Act 1998 s 7(3)). The public body, as variously defined by case law, is the respondent (eg local authorities responsible for child care, CAFCASS, Legal Services Commission, Court Service and Ministry of Justice: eg for delay in proceeding with a case).

‘Interested parties’ are defined by CPR r 54.1(2)(f) as ‘any person (other than the claimant and defendant) who is directly affected’ by the proceedings. The court may allow ‘any person’, on application, to file evidence or to make representation at the final hearing (CPR 54.17). On occasion an interested party will be the lead respondent (eg proceedings against the Child Support Commissioners will often be defended by the Secretary of State for Work and Pensions (CSA) as interested party).

The prerogative orders
The High Court, in its discretion, may make one or more of the following orders in judicial review (Supreme Court Act 1981 s 31(1)):

Grounds for judicial review
The foundation of judicial review is a challenge to the powers (‘vires’) of the public authority; or the way in which the public body – a decision-maker – exercises, or fails to exercise, its powers. A judicial review claim poses the question: does the body, or the decision-maker in its name have the power vested in it to do what it has done; or, given that it has the power, has it unreasonably failed to exercise the power?

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock proposed a categorisation of the grounds for judicial review. (Human Rights Act 1998 adds what may be regarded as another categorisation (outside the immediate scope of this article).) Lord Diplock proposed the following grounds:

(1) Illegality
In the judicial review context illegality means a failure to act within the relevant law. The decision-maker must understand the law on which his/her decision is to be based and must apply it correctly. S/he must proceed upon a correct assessment of the underlying facts of the matter in issue; or upon facts which support his/her findings. A stark example of illegality can be found in R (G) v Nottingham County Council [2008] EWHC 152 (Admin), Munby J, where social workers removed a child at birth from her mother without any court order or other legitimate authority. The mother applied for a mandatory order for the return of her child.

It is illegality if a decision-maker fails to take into account a statutorily relevant issue or takes into account an issue which is excluded by statute from consideration. For example, local authorities are required to take account of the views of certain prescribed persons when deciding whether to accommodate a child (Children Act 1989 ss 20(6) and 22(4)): failure to take account of all relevant views leaves open the risk that the decision may be quashed.

A decision-maker must approach every decision with an open mind and not, necessarily, according to prescribed formulae: discretionary powers must be exercised ‘on each occasion in the light of the circumstances at the time’ (R v Secretary of State for the Home Department exp Venables [1998] AC 407, HL). The very word ‘discretion’ implies an ability to adapt a decision to individual circumstances; provided that the bounds of that discretion are understood.

(2) Irrationality
The classic definition of irrationality remains as set out in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223,CA: did the local authority take into account matters which they should not have done; or did they fail to take into account matters which they should have considered? And even if they did not act irrationally, did they nevertheless come to a conclusion ‘so unreasonable that no reasonable authority could have come to it’?

Powers may not be used outside the ambit of a decision-maker’s authority: ‘Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can be validly used only in the right and proper way which Parliament… is presumed to have intended…’ (R v Tower Hamlets LBC exp Chetnick Developments Ltd [1988] AC 858, HL per Lord Bridge of Harwich at 872).

The operation of the power, then, is one thing. Its rational use within its legal context is quite another; and the question of whether its operation has been correctly reasoned is under consideration here. The scope for interference by the courts is narrow. Unless the decision-maker exercises his discretion in a way which is so unreasonable that no reasonable decision-maker could have so operated, and he has taken into account the correct questions, then his decision will not generally be said to have been irrational.

(3) Procedural impropriety
A decision-maker must act fairly, that is to say in accordance with the principles of natural justice. Common law concepts of natural justice have been extended by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 6(1) (right to a fair trial). A right to a fair trial does not affect the actual rights which the courts are required to protect; but the Article protects or guarantees the procedure by which those rights are protected.

As mentioned ‘public bodies’ includes lower court, including the county courts. In Sivasubramanium v Wandsworth County Court [2002] EWCA Civ 1738 the Court of Appeal considered the extent to which a county court appeal may be reviewed and concluded that ‘exceptional circumstances’ would have to be shown for judicial review to provide what amounts to giving a litigant yet another appellate tier. Similar reasoning – that ‘exceptional circumstances’ must be shown - applies to Child Support Commissioners to whom appeals lie from tribunals on a ‘question of law’ (Child Support Act 1991 s 24). There is no appeal (eg to the Court of Appeal) from their decision to refuse leave to appeal; so that, unless an appellant parent can persuade the Administrative Court that there is something ‘exceptional’ about the refusal, that is the end of the appeal line for that parent – which, given the vagaries of some tribunal chairmen, can be a severe outcome.

Procedure in outline
A judicial review protocol letter to the public body starts the process (for the text of the protocol see eg the White Book Vol I). Be sure to identify clearly the decision and its date – or the lack of decision – which is in issue. A short-time for reply should be demanded of the body should be demanded for time-limits are tight, especially if public funding must also be applied for. And beware of tactical stalling by legal departments.

A relatively simple claim form (N161) is filed. The decision (or lack of it) must be identified (Section 3); and the form must be accompanied by ‘detailed grounds) (Section 5): this is in effect the pleaded case (to be considered in a later article). The public body may reply – ‘summary grounds’ which accompany their acknowledgement of service – after which a judge of the Administrative Court considers the application on paper. If it is refused the claimant can renew in open court. If granted, whether on paper or in open court, the claim proceeds to a hearing. It will rarely involve the filing of affidavits or the hearing of oral evidence.

Part 54 provides a relatively simple, and not over-expensive, procedure. The remedies available to the judges are mostly effective. Sadly the Court may be becoming a victim of its own success. Its administration is often inefficient under the weight of the many and varied applications; hearing dates are long delayed; and the requirement that all decisions must be made by a judge of the Court is doubtless adding to those delays.